TMI Blog2022 (6) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 139 of the N.I.Act, since the complainant has not taken any further steps to show that there existed a legally enforceable debt or that consideration towards the cheque under Ex.P-1 was passed on to accused, suffice it to say that the complainant had failed to prove the alleged guilt against the accused. However, both the Trial Court and the Sessions Judge's Court without analyzing the evidence placed before them in their proper perspective, have hastily embraced the fact that both the parties to the case were known to each other and the cheque that was issued by the accused, was presented by the complainant and the same came to be dishonored and also of the fact that a legal notice was also sent by the complainant after dishonor of the cheque, calling upon the accused to pay the cheque amount, have jumped to a conclusion that complainant has proved the alleged guilt of the accused. Since the said finding of both the Trial Court and the Sessions Judge's Court now proved to be perverse and erroneous, the same warrants interference at the hands of this Court. The impugned judgment of conviction and order on sentence passed by the learned Civil Judge and J.M.F. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 138 of the N.I. Act and convicted him for the said offence and sentenced him accordingly. 5. Aggrieved by the said judgment of conviction passed by the Trial Court in C.C.No.378/2009, the petitioner preferred a Criminal Appeal No.48/2011 in the Court of the Fast Track at Tiptur, (hereinafter for brevity referred to as the Sessions Judge's Court). 6. After hearing both side, the learned Sessions Judge's Court, by judgment dated 11.09.2012, dismissed the appeal and confirmed the impugned judgment passed by the Trial Court. Aggrieved by the same, the petitioner has preferred this revision petition. 7. The Trial Court and Sessions Judge's Court's records were called for and the same are placed before this Court. 8. The learned counsel for the petitioner and learned counsel for the respondent are physically present in the Court. 9. Heard the arguments from both side. Perused the materials placed before this Court including the Trial Court and Sessions Judge's Court's records. 10. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court. 11. After hearing the learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 13. In the light of the above, it was the argument of the learned counsel for the petitioner/accused that the alleged loan of Rs.50,000/- said to have been given by the complainant to the accused has not been proved by him. The evidence of the accused and the cross-examination of PW1 creates a serious doubt in the existence of alleged legally enforceable debt. However, both the Trial Court as well as the Sessions Judge's Court did not notice the said fact but in a mechanical manner, have held that the complainant has proved the alleged guilt against the accused, as such, those two impugned judgments warrants interference at the hands of this court. 14. Learned counsel for the respondent/complainant in his arguments submitted that the accused has not denied taking a loan of Rs.50,000/-. No suggestion was made to PW1 in that regard. He also submitted that the accused did not reply to the legal notice taking his defence at the earliest point of time. Thus, the defence of the accused is purely an after-thought. He also submitted the statement about Sri.Aslamsab that at his recommendation, the complainant has filed the present complaint which has come in the cross-examina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .20,000/- from him and in that regard as a security, three blank but duly signed cheques of State Bank of Mysore, Turuvekere branch, were given by the accused to him. 18. In his cross-examination as PW1, the complainant in order to show that the alleged transaction of a loan of Rs.50,000/- from him to the accused is a fact, has stated that the accused has got the cheque in question written through Sri.Aslamsab on 3.1.2009 and it was the said Sri.Aslamsab who himself brought that cheque and gave it to him (PW1) and taken back Maruti Omni Van bearing registration No.KA 20-2789. He further stated that the complaint in question was given by him on the recommendation made by the said Sri.Aslamsab. 19. On the contrary, the said Sri.Aslamsab who was examined as DW4 from the accused side in his examination-in-chief, has categorically and specifically stated that on 3.1.2009, the accused has not got any cheques returned by him in favour of the complainant. He also stated that in his presence, Maruti Omni vehicle bearing registration No.KA 20-2789 was not taken back. He also stated that he has not stated to the complainant to lodge a complaint against the accused. These three very mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three blank signed cheques said to have been collected by him from the accused on the said date of 6.10.2008. Merely because PW1 denies the loan transaction dated 6.10.2008 and he receiving three blank cheques, by that itself, it cannot be held that there was no loan transaction dated 6.10.2008 and no blank cheques were given by the accused to the complainant. It is because apart from DW1, all the three remaining witnesses i.e., DW2, DW3 and DW4 admittedly acquainted with the complainant have stated uniformly that on the said day, three blank cheques of the State Bank of Mysore, Turuvekere branch and belonging to the account of accused, was given to complainant at his insistence. The said uniform evidence of DW2, DW3, DW4 cannot be disbelieved. Therefore, it is for the complainant to show as to what happened to those three cheques, since according to DW1, corroborated by the evidence of DW2, DW3 and DW4, the complainant is alleged to have misused the one among those three cheques in the form of the present complaint. The alleged loan transaction as canvassed by the complainant appears to be highly doubtful. 22. The above view also gains support from the fact that according to PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had collected three cheques as security. Though PW1 did not admit the said suggestion as true but by making the said suggestion, the accused has specifically suggested to the witness (the complainant) that he has not given loan of Rs.50,000/- to the accused. Therefore, the argument of the learned counsel for the respondent that accused has not denied taking of loan of Rs.50,000/-, is not acceptable. 24. The learned counsel for the respondent also submitted that even after service of notice, the accused did not send any reply to the legal notice, as such, the defence taken up by him is purely an afterthought. 25. It is a fact that the respondent did not reply to the legal notice sent by the complainant to him demanding the payment of the cheque amount. However, merely because the accused has not replied to the legal notice sent to him by the complainant, by that itself, it cannot be inferred that the accused had no defence in the matter and that he has admitted his liability under the cheque. In the instant case, even though the accused has not replied to the legal notice sent to him by the complainant, however, he has put his defence in the cross-examination of PW1 and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forceable debt and attempted to encash the benefit of presumption formed in his favour but the accused could able to rebut the said presumption successfully. Needless to say that as observed by the Hon'ble Apex court in Sumeti Vij vs. Paramount Tech Fab Industries, reported in 2021 SCC Online SC 201, the scope of Section 139 of the N.I.Act is that when an accused has to rebut the presumption, the standard of proof for doing so is that of preponderance of probabilities . The accused in a trial under Section 138 of the N.I.Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. 28. In the instant case, as analyzed above, though a presumption about existence of legally enforceable debt was initially formed in favour of the complainant under Section 139 of the N.I.Act, however, the accused by eliciting several statements in the cross-examination of PW1 in his favour and also leading evidence by examining four witnesses from his side, could able to successfully m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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